Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-02-04
THE WACO WILL CASE.
Judge Evans Delivers Lengthy
Opinion After Carefully Considering
the Complicated Question.
He Gives Young McCleliand an Immediate
Interest In Fec Simple of all HIs
Fathers Property.
Special to the Gazette.

Judge Evans decision in the famous
contest over the last will and ties,
lament of Peter McClelland, de-
ceased. The readers of THE GA
GAZETTE are familiar, in general way,
with the provisions of the will, but to
understand Judge Evans decision more
intelligioly, it may be stated that the tes-
tator, Peter McCle Hand. was one of the
wealthiest men in Waco. He died il The
latter part of last year, leaving widow
aud one son, who would have inherited
his estate but for the peculiar will which
the old man left. He gave all of his prop
erty into the hands of two trustees, who
were to handle and control it for term
of twenty-five years, without bond or re
straint of any kind. Under codicil,
made during his dying days, the ex-
tent of this trust was enlarged, 50
the two trustees might hold and manage
the estate for fifty years, or indefinitely.
if they so desired. The trustees were to
pay the widow and son an annuity Of
Sl50 per month each for the term OF
twenty-five years, when the estate is to
revert to the wid,.w and son, provided
the trustees believe the son capable of
managing his part of the estate. The
widow is to get hers, however, without
any reservation, at the end of said term
of twenty five years. During that period
the income of the estate is to be used in
building up the estate. It was manifeStly
the dead McClelland's desire to see how
large his estate could be made. Money
making was his passion in life, and it was
strong in death. He WAS afraid his son
would waste the money, and
therefore would not let him
have it. The son, who is a
man thirty-two years of age, of steady
habits and sound mind, was stung to the
instituted proceedings to set it aside. The
decision rendered to-day:
Estate of Peter McCielland, Sr., de-
ceased-The first issue presented in this
cause is as TO the testamentary capacity
OF the testatOr 1T the time of the execu-
ton of the cOdicil offered for probate,
which bears date on the I7.h day of Au-
gus, 1886.
The evidence shows decedent to have
been In a very feeble physical condition
for some time prior to tHis date. On the
9th day of August he was subjected to
and severe surgical opera
ton, followed by intense suffering, at
tended with high fever and great prCstra-
ton, Tor period Of several days, during
which period he was kept in state of
most of the time by NOR
phine. On the l4th his fever cooled down
and his condition improved until after
the cate of the making of the codicil. At
the time: however, the instrument was
signed he was too weak to discuss
its legal features with his attorney
who drafted it, and had 10 be held up in
bed and his arm held steady by an at
tendant while he tried in vain to trace his
name on the paper. Before he could
finish his signature he became so eX-
hausted that his nurse had to lay him
back on the bed. All the circumstances
surrounding the execution CT the codicil
go to show that the teStator was very
much enfeeOled mentally as well as
at the time. And while have
grave doubts of his testsmentary capacity
at the time, inasmuch as the terms of the
codicil ale in keeping with his fixed pur-
pose as indicated IN the will of 1881, | ad-
init the same to probate in connection
with the original will.
The next question to be considered is
the construction If the will of 1881. In
constituting wills the intention of the tes-
ator is the cardinal principle to be kept
in view, and should De the object of in
Iuiry as far as possible. T l Redfeld, 1873 4 :;
Laval VS.. Staffel, 81 Texas. 372; 7 schal |
vs.. AckliD, % Texas, 1913. But IN purs uing |
his inquiry of the testator's intention, |
ha ia I;eh
rules of legal construction in order to /
each what the conceive to be such in |
ention. Redfeld, 422- 42G, and authori- |
les thereicited
1t therefore becomes pertinent to de- |
ermine the nature and character of the !
state conveyed in the will to the residu-
Try devisee.
After unimportant reCitations in the |
vii, "Item fourth" reads as follows: 81
give and bequeath to my beloved son,
Peter McClelland, Jr., should he survive |
ne, all the residue of my estate, real, per-
'onal and mixed, to be received, however, +
md enjoyed by him only in future upon
he terms, conditions, membranes,
rusts and stipulations herein provided |
or, which said estate shall be held by my
Executors, controlled and managed as
herein provided, in trust for my said son
Peter for twenty five years from and after
ny death before the same shall be turned
,ver to my said son, except such provi-
lions and legacies as are herein made for
he support and maintenance Of my said
ION during the said period Of twenty-five
ears, should he live SO long"
In the eighth item of the will is the
ollowing provision: "At the expiration
# said twenty five years my said eXecu-
ors shall turn over to my said son, Peter,
living, the entire residue of my estate,
whether money, real, personal or mixed,
With the increase and accretions to the
ame as provided for herein, after paying
be charges of every kind and legacies
eren provided for out of the same; but
hould my son, Peter, die before the ex-
iration of said period of twenty fve
ears after my death, or before do, then
/ is my desire that said trusts shall end,
nd that my heirs at law shall take my
state clear of the trusts, charges and
herein created, according
0 the laws of the state of Texas, and th ut
~ executors turn the same over to them,
harged. however with the requests to
~ wife if living"
These two clauses create a trust of
years, subject to be ended
efore that time by the death OF the resid-
airy devisee. The codicil extends this
rust for the natural life of the devisee
Tithout reference to term of years.